AMENDMENT NUMBER
ONE (the “ Amendment ”), dated as of
July 27, 2009, between SPSS Inc., a Delaware corporation (the
“ Company ”), and Jack Noonan (the “
Executive ”), to the Amended and Restated Employment
Agreement (the “ Employment Agreement ”), dated
as of May 1, 2009, between the Company and the
Executive.
WHEREAS the
Executive is a key employee of the Company, and is employed by the
Company pursuant to the Employment Agreement;
WHEREAS pursuant
to, and subject to the terms and conditions of, the Agreement and
Plan of Merger by and among International Business Machines
Corporation (the “ Parent ”), Pipestone
Acquisition Corp. and the Company, dated as of the date hereof (the
“ Merger Agreement ”), which the Company is
entering into contemporaneously with this Amendment, the Company,
as the surviving corporation as a result of the Merger (as defined
in the Merger Agreement), will become a wholly owned subsidiary of
the Parent;
WHEREAS in
connection with the Merger, the Executive is selling and disposing
of all of his ownership and equity interest in the Company,
including restricted stock units and vested or unvested stock
options with respect to Company stock held by the
Executive;
WHEREAS the Parent
has agreed in the context of the Merger Agreement to pay a
significant premium on the current market value of the Company,
which will result in a direct and substantial benefit to the
Executive, in consideration for, among other things, the
Executive’s agreement to enter into this
Amendment;
WHEREAS as a
result of the Executive’s employment with the Company, the
Executive has been given access to various confidential and
proprietary trade secret information of the Company (which
information is one element accounting for the valuation of the
Company, including its goodwill) and will, following the Merger,
continue to be given access to such confidential and proprietary
trade secret information;
WHEREAS Section
10(f) of the Employment Agreement contains various restrictive
covenants pursuant to which the Executive has agreed, among other
things, to refrain, during the period of the Executive’s
employment with the Company and for a period of time thereafter, as
described therein, from directly or indirectly engaging in
activities that are competitive with the business of the Company
and its Affiliates (as defined in the Employment Agreement) and
from soliciting the Company’s customers and
clients;
WHEREAS the second
paragraph of Section 10(f) of the Employment Agreement provides
that the provisions of Section 10(f) shall terminate if, among
other things, the Executive’s employment is terminated for
any reason within twelve months after a transaction such as the
Merger;
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WHEREAS, in order
to protect the value of the Company following the Merger, and as an
inducement to the Parent to enter into the Merger Agreement and pay
the purchase price contemplated thereunder, the Company and the
Executive wish to amend the Employment Agreement, with continuing
effectiveness conditioned upon the occurrence of the Closing, to
ensure that (A) the Executive will be required to execute an
irrevocable waiver and general release of claims in favor of the
Company and its Affiliates as a condition of receiving certain
termination payments upon the Executive’s termination of
employment by the Company without Good Cause or by the Executive
for Good Reason or pursuant to the Special Termination Provision
and (B) the provisions of Section 10(f) of the Employment
Agreement shall not terminate after the Closing, including as a
result of the Executive’s termination of employment at any
time and for any reason following the Closing.
NOW, THEREFORE, in
consideration of the mutual agreements, provisions and covenants
contained herein, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1.
Amendment to Section 5. The following new Section 5(k)
is hereby inserted at the end of Section 5 of the Employment
Agreement:
“
Release. The Company shall have no obligation to make any
payments described in Section 5(f)(v) or Section 5(h)(ii)
unless, on or prior to the fifty-fifth (55th) day following the
Date of Termination, the Employee has provided an irrevocable
waiver and general release of claims, in the form attached hereto
as Annex A , in favor of the Company and its Affiliates,
predecessors and successors, and each of their respective
directors, officers, employees, shareholders, partners, principals,
members, agents or representatives, and such waiver and general
release has become effective and irrevocable in accordance with its
terms; provided that notwithstanding the last paragraph
under Section 5(f) (pursuant to which payments to be made
thereunder and under Section 5(h)(ii) would otherwise be payable
within fifteen (15) days following the Date of Termination),
any payments made pursuant to Section 5(f)(v) and
Section 5(h)(ii) shall, subject to the foregoing requirements
of this Section 5(k), be paid on the fifty-fifth (55th) day
following the Date of Termination.”
SECTION 2.
Amendment to Section 10(f). The second paragraph of
Section 10(f) is hereby deleted in its entirety from the Employment
Agreement, and the following paragraph is hereby inserted in its
place:
“Notwithstanding
any provision of this Agreement to the contrary, the provisions of
this Section 10(f) shall survive termination of the
Employee’s employment with the Company and its Affiliates for
any reason, including, without limitation, any termination of the
Employee’s employment following a Change of
Control.”
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SECTION 3.
Governing Law; Construction. This Amendment shall be deemed
to be made in the State of Illinois, and the validity,
interpretation, construction and performance of this Amendment in
all respects shall be governed by the laws of the State of Illinois
without regard to its principles of conflicts of law. No provision
of this Amendment or any related document shall be construed
against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason of
such party’s having or being deemed to have structured or
drafted such provision.
SECTION 4.
Effect of Amendment. Except as expressly set forth herein,
this Amendment shall not, by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and
remedies of the parties to the Employment Agreement, and shall not
alter, modify, amend o
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